I recently listened to Sam Harris’s interview with Tom Nichols on Harris’s Waking Up Podcast. Nichols discussed the “Dunning-Kruger Effect.” If there is a zeitgeist for our age, it may well be the Dunning-Kruger Effect.

Before I define the Dunning-Kruger Effect, let me describe the setting where you may have experienced it. Most often you observe it at a family get-together. Likely, your loudest relative on topics in the political arena fancies himself an expert is likely not much of a political scientist. And you also may experience it in client consultations in the form of the relative who comes to the office who took a business law course at one time about a decade ago. This relative arrives at the office with the client and acts as the family spokesperson. Or you may see it in the thick handwritten correspondence from the client who has been spending time in the law library.

The Dunning-Kruger effect is a cognitive bias in which people with very little knowledge about a topic are overconfident about what they actually know. Meanwhile, folks with expertise tend to see the nuance within a topic and limit their commentary to what can be confidently known. Language may be understated and carefully precise. In the political sphere, a sizeable number of voters fall victim to the phenomenon and vote for the most vocal and confident-sounding candidate. Add to that phenomenon a bias or resentment of professionals (egg heads in their ivory tower) and a bias for “just folks” and you have the Dunending-Kruger effect.

If you are in the business of  law, the Dunning Kruger effect can be tricky. We went through a painful process as 1Ls that taught us to “think like a lawyer.” And this thinking process was as important if not more important than the topics we were learning. In many ways, torts was a vehicle that we used to learn a method of thought. And this approach to legal problems was why we spent the tuition dollars.

It is fairly easy for the client in the market for an attorney to go on FindLaw and find cases that appear to be relevant. And the client can go into a prison’s law library or contraband electronic device and have access to the same database of law that you have. But the context of a legal education and years of courtroom experience do not come with the material. And it can be easy to become bogged down or incorrectly directed when you divorce the material from all the of sleepless nights learning how to understand it in context. Add to all of this, a national ethos of distrust of experts, a suspicion of the legal system and its officers, and the Dunning Kruger effect can take hold.

To make matters worse, the law is not a computer into which we feed facts and out comes an answer. Statutes and precedent are malleable. And the client’s fate is often subject to the preferences, biases, and even mood of the trier of fact and interpreter of law — the judge and/or jury. When asked such questions as “how is it looking for me?” “was the officer wrong to do what he did?” Or “when will this be over?” We give an honest answer that speaks to the uncertainty. Ask those questions to 10 honest lawyers, and about 8 of them will answer “well, it depends.” Clients are invariably frustrated by how tentative we are about things and wonder why we aren’t “shooting straight” with them. The irony is that we would not be shooting straight if we answered their questions with the level of certainty that they want. However, the jailhouse lawyer or the “family expert” has arrived at a more definite and most certainly optimistic answer. And they state it more confidently that you will. But the client comes to you looking to hire a lawyer.

Fight too hard against the Dunning-Kruger effect and the client will go elsewhere — to the lawyer who charges a third of what you charge and who is willing to agree with anything that the family’s legal expert says. This lawyer is in the client entertainment business and does not mind that the folks in the courtroom are going to roll their eyes when the lawyer comes in the door. Go along with the “expert” for too long and you will find yourself in front of a judge who will not be amused to hear what you have to say.

There is no clear answer to how to handle the phenomenon in legal practice. It requires active listening and a calm and steady effort to talk the client down from the ledge. Also, to be fair, we must be careful that we are also not falling victim to the Dunning-Kruger effect in being dismissive at competing ideas. The canary in the coal mine for whether you are suffering from the Dunning-Kruger effect is a sense of confidence confidence that you know the outcome. In the long term, I have to believe that authenticity is the best long-term strategy for marketing and reputation. I have to believe this, because an alternative to that view of things is frightenting to imagine.

steamsaleCriminal calendars may be handled slightly differently in every jurisdiction. But they have one thing in common. At some point in every case, the lawyers will argue about why a person did that he did. And a judge or jury will evaluate this question and make a decision about what to do in light of that decision. In some instances, this evaluation will literally amount to life or death. In most, this decision will determine whether a person goes a away to a prison, is able to continue a course of education, or has her career choices forever limited by a label. But in each of those moments, not only the choice a person made but that person himself is judged. For that reason, how we think about free will is an important subject.

For those who are represented by thorough defense counsel, this judgment is made early and in the charging stage. The sooner you can bring a person’s full humanity to the attention of “the system” the more hope you can bring to that person. From the defense attorney’s perspective, the more complex that decision is, the better. It’s easy to pass judgment on a file and difficult to pass judgment on a person. So, you do everything you can to show to the system your client’s full humanity. Ken White wrote about this very thing:

If judges confronted the defendants’ individual humanity as they caged them one after another, they’d go quite mad.  It’s impossible and inadvisable.

The trick is to light a spark that catches the judge’s eye, that transforms your client even momentarily from an abstraction or a statistic or a stereotype into a human being with whom the judge feels a connection.  Judges are people, and people connect with each other through commonalities – family, hobbies, sports, music, and so forth.  At sentencing, a good advocate helps the judge to see the defendant as someone fundamentally like the judge, with whom the judge can relate.  It’s harder to send a man into a merciless hole when you relate to him.

Ken White was writing about the Stanford swimmer whose sentence struck many around the country as exceedingly light given his conduct.

What the system is asking itself when it passes judgment is not just how we judge the person’s action or the person himself. The best among our profession challenge the moral framework that the system uses to even pass those judgments. And that moral framework inevitably turns to free will.

Free will is a touchy subject. It is perhaps the third rail of jurisprudence, politics, and religion. For those who are interested in exploring this moral framework and the role free will has to play in it, I commend to you Sam Harris on this topic.

Harris posits that free will is an illusion and that it matters that we develop a more sophisticated understanding of it. And Harris argues that (1) we are not free to make choices independently; and (2) that our choices are not even the product of our conscious mind.

And where he goes with this argument is not where you might expect.

We live in a world of cause and effect. Even within our body, we are doing things well beyond our conscious control. We are making red blood cells, but we are not in control of whether we make them. And we did not choose who our parents or where we were born. And, for Harris, our choices emerge from “a wilderness of cause and effect” that we neither see nor fully appreciate. We carry genetic information from ancestors and a lifetime of experiences with us. And that material may well be dispositive of every decision, including whether to buy coffee or cocoa on our way to work. In short, Sam Harris argues that free will is an illusion.

The Consequence for Us and For How We View the World

For one, if our free will is an illusion, then we should chill out about a couple of things. We should be more humble about our good choices. To a certain extent, we should be no more prideful about our good choices than we are about our height. At the same time, if we have managed to choose well, we should feel fortunate about this fact in the way we feel fortunate about good health. And if we have chosen badly in the past, we should perhaps go a little easier on ourselves.

More importantly, Harris’s view of free will is important for how we view others. If other people’s choices are a manifestation of their genetics and life experience, then we should feel more compassionate and less of a sense of hatred toward those who have made exceptionally bad choices.

Let me Anticipate Your Argument

If free will is an illusion, then why have a criminal justice system? Why send any defendant to jail since there is not free will. This takes us to our next point.

Free will is an illusion, but choice still matters. Says Harris,

The fact that our choices depend on prior cause does not mean that choice doesn’t matter. To sit back and see what happens is also a choice that has its own consequences. So, the choices we make in life are as important as people think, but the next choice you make will come out of a wilderness of prior causes that you cannot see and did not bring into being.

And an understanding of free will can guide future choices in a more systematic and perhaps grander way. We can shift the the ground from which our choices arise. And I hope you will pardon me for putting in another block quote:

A creative change of inputs to the system — learning new skills, forming new relationships, adopting new habits of attention — may radically transform one’s life. Becoming sensitive to the background causes of one’s thoughts and feelings can, paradoxically, allow for greater creative control over one’s life.

This understanding reveals you to be a biochemical puppet, of course, but it also allows you to grab hold of one of your strings.

A very wise friend of mine who counseled some of my clients and testified on behalf of some of theme at sentencing, would tell them that the way to recover from an addiction had less to do with the choice to “use” in the moment and more to do with avoiding the moment. She drilled clients on what she called the “PPTs” or “persons, places, and things.” Change your landscape and eventually your “free will” acts differently.

Harris provides a helpful view of the world and a paradoxically liberating escape from free will.